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Michael Rich authors “Should We Make Crime Impossible?”

Published by the Harvard Journal of Law & Public Policy, the article by Elon Law Professor Michael Rich examines benefits and costs of government mandates that aim to make some criminal conduct impossible through the use of emerging technologies.

Rich calls these types of government mandates, “impossibility structures,” noting that they, “do not target a potential criminal’s rational decision-making; they aim instead merely to frustrate her efforts. Put another way, whereas structural controls and traditional crime-fighting tell criminals that they ‘shouldn’t’ do something, impossibility structures make it so that they simply ‘can’t.’”

One example Rich explores in-depth in the article is the Driver Alcohol Detection System for Safety (DADSS), “a car-based technology under development by the federal government and car manufacturers that aims to prevent drunk driving.”

As Rich describes in a 2012 New York Times article on the subject, DADSS would seek to prevent crime, “through in-vehicle technology that automatically checks a driver’s blood-alcohol level and, if that level is above the legal limit, prevents the car from starting.”

Rich says the deployment of impossibility structures “challenges the assumption that the criminal justice system is about shaping the choices that individuals make freely and punishing those who choose of their own free will to violate the law.”

He argues that, “considerations of structural controls as crime-fighting tools … proceed on the basis of foundational assumptions that avoid or obscure important questions. Some assume that crime prevention is an unalloyed good and thus fail to engage with difficult normative questions raised by structural controls on crime. Others approach structural controls with an overriding skepticism about government interference that preempts a discussion of the practicalities of such controls. None of these discussions provide legislators (and future scholars) with a starting point for their analysis of specific impossibility structures.”

In his article, Rich defines what constitutes an impossibility structure, establishes a framework for analyzing impossibility structures by setting forth arguments for and against their use, and applies this framework to examine DADSS. Rich also highlights issues that are likely to arise in applying the framework to future structures.